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HomeMy WebLinkAbout1980-0563.Muise.82-06-21IN THF MTTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Eefore TBE GRIEVANCE SETTLEBIENI BOARD Between: CUPE (John hluise) Grievor - And - The Crown in Right of Ontario I (Ministry of Municipal Affairs and Housing) Employer Before: R.J. Roberts Vice Chairman E. McIntyre Member W. Evans Member For the Grievor: W. Brown, Representative (Lot. 767) Canadian Union of Public Employees For the Employer: A. Tarasuk, Counsel Central Ontario Industrial Relations Institute . . . . Hearings: April 2, 1952 May 12, 1982 -2- ..) AWARD This is a discipline case. The Employer, The London and District Housing Authority, disciplined the grievor, an con-s,ite caretaker at the Authority's seniors citizen apartment building at 30~Baseline Road, London, Ontario, by removing him from on-site status and making a notation in his file, - At the hearing, the Employer submitted that it had just cause to discipline the grievor in this way because despite be- +ng counse~llea~by~~'Employer, the grievor evidenced through his conduct that he would persist in-entering apartments in the buiId,ing to perform work without first obtaining the required authorization, either verbal-iy or in writing, from the Employer. The Union, Local 767 of the Canadian Union of Public Employees, made essentially two submissions on behalf of the grievor. First, the Union submitted that,if the Board were, to accept the evidence of the grievor, no just cause, for, discipline existed because the grievor did nothing to indicate that he would persist in breaking any rules of the Employer by entering apartments without permission. Alternatively, the Union argued that even if the evidence of the Employer were to be accepted, it merely showed that the griever was an over-zealous 'employee. Such -3- an employee, the Union submitted, ought not to be subjected to the severe financial penalty that the grievor was subject- 'ed to when he was removed as on-site caretaker. The Union pointed out that this removal cost the grievor the loss of a subsidized apartment; lead hand premium of 6Oc per hour: on-sitapremium of 27c per'hour; and, lock-up pay of l/4 hour per shift per day. The Union submitted that in the circumstances, the Employer did not have just cause to c impose upon the grievor such a stiff penalty. Upon due consideration of the evidence and argument of the parties, we conclude that the grievance must be dismissed. We accept the evidence of the witnesses for the Employer that the grievor did persist in making un- authorized entries after being counseled by the Employer. This wasambreach of the rules and resulted in a number of complaints from tenants. We further conclude that the Employer had little choice but to remove the grievor from on-site status. The evidence at the hearing indicated that , as a result of a number of incidents which had occurred in which the grievor appeared to, tenants to be making unauthorized entries into apartments, there was considerable uneasiness among tenants regarding having the grievor as on-site caretaker. Since the grievordidnotappeartobetaking seriouslytheEmployer's ., i -4- counseling, it seems that the Employer was forced to resolve the situation by taking the only reasonable alternative left open to it, i.e., removing the grievor from on-site status.~ At the. hearing.,, there~~proved tom be some variance regarding the particulars of events leading to the discipline imposed upon the grievor. Given that the events occurred sometime ago, in the period June to September, 1980, such a variance is understandable and is to be.expected. In making our findings of fact, we have tended to.prefer the evidence of the Employer wherever a conflict has arisen. We did so because there were several witnesses for the Employer whose testimony regarding certain disputed details seemed to coincide closely. Further, on detail regarding a particular date, i.e., whether certain garbage was removed from an apartment on Sept. 2 or 3, 1980., independent records produced at the hearing confirmed that the date recalled by witnesses for the Employer was the most probable date on which the event occurred. The facts as we find them are as follows. The senior citizens apartment building at 30 Baseline Road in London, is a large, lo-story high-rise building. There are several - 5 - wings to this building which branch out like spokes from a hub in which is located a bank of elevators. The :I building is cared for by one on-site caretaker, who resides in the building, and one other caretaker. 'During the relevant period of time, the on-site car,etaker was the / griever . The other caretaker was Mr. L. Thbrne. The grievor was designated the lead hand and, as such, was vested with more responsibility then Mr. Thorne. The Employer operates a number of similiar senior citizen residences in London. It appears from the evidence that to a considerable extent the operations of the Employer regarding all these buildings werecentralized. In the maintenance area, a .Maintenance Supervisor was based in the central offices of the Employer. The caretakers and other field staff reported directly to him~. In turn, the Maintenance Supervisor would issue work orders authorizing the caretakers, etc., to perform work which was not part of their regular, routines in the common areas of the buildings. For example, a caretaker would require a work order to repair a leaky faucet in a tenant's apartment but would not require a works order to perform a regular chore such as organizing trash.for pick-up. For most of the relev'ant, time period, the grievor's .Maintenance Supervisor was Mr. Pat Grehan. -6- If the caretaker were required to enter a tenant's apartment in order to make a repair, it not only was necessary to obtain a work order but also the permission of the tenant. If the tenant were at.home when the.repair was made, the consent of the tenant could be obtained verbally. If the tenant was going to be away from his .or her apartment.when the repair was to be made.,. the caretaker had to obtain from the tenant a written permission slip authorizing him to enter the apartment. These and other procedures were .made known to all caretakers. They were embodied,at least in a general sense, in the Rules and Regulations that the care.takers were required to sign as a condition of employment. The grievor signed a copy of these rules and regulations on December 27, 1978. The legend above his signature read, "I hereby acknowledge receipt of these Regulations. I have read them and agree to their application." In spite of this, the Employer began to receive ;', many complaints and allegations from tenants at 30 Baseline Rd. to the effect that the grievor was entering apartments without permission. Most of these were unsubstantiated and tbe Employer generally considered the grievor's explanations to be satisfactory. At the hearing, however, two such in- cidents were substantiated. It seems th.at on June 13, 1980, the grievor was seen by at - 7 - least two tenants preparing to enter apartment #519 during a period of time when its tenan,t, Mrs. M. Ross, was known to be away in the hospital. When one of the tenants who saw him-asked the grievor what he was doing, reminding the grievor that Mrs. Ross was in the hospital, the griever responded that~he had a work order to repair some faucets in the apartment. This response was heard not only by then tenant who questioned him but also by a tenant who lived a few doors down the hall who was, watering some 'flowers she kept beneath the window in the hallway at the time ~of the incident. When Mrs. ROSS,' sister appeared on the scene; probably -in order to check the apartment for Mrs. Ross~, the 'grlevor did not carry through with his original intention. After a brief conversation with Mrs. Ross' sister, he left. / It was shown at the.hearing that there was never a work 'order under which ~the grievor was authorized to repair a ,faucet in this apartment nor did the grievor ever receive a permission slip from Mrs. Ross authorizing him to enter her apartment while 'she was away. The tenants who observed the grievor attempting.to enter Mrs. Ross'. apartment was sufficiently disturbed by this incident to report it to the Employer. -8- A further incident of unauthorized entry, which occurred on August 28, 1980, was substantiated in evidence at the hearing. This incident involved apartment 8601. Apparent- ly the tenant, Mrs. Lewis, had died and virtually all of her belongings had been removed from the,apartment by her‘relatives. In the early afternoon, the grievor showed this apartment.to a prospective tenant. While showing the apartment, he noticed that a hand-held shower head assembly -which belonged to the deceased still was attached to the standard shower arrangement of the apartment. He had to explain to the prospective tenant that this did not come with the apartment. Later in the day, the grievor found that he had some spare time. He decided that he would go up to apartment #601 and remove this shower ,assembly in order to avoid any further confusion. He aid so. The grievor brought the assembly down to the office and tagged it with the apartment number. The trouble was,~'the grievor did not bother to obtain f&m his Maintenance Supervisor, a work order authorizing the removal of this shower head. According to the Rules and Regulations of the Employer, before the grievor went to the apartment to remove the shower head,~ he should have phoned his Maintenance Supervisor to receive at lwst a verbal authorization which would have been followed in due z i- -9- course by a written work order. The grievor knew that this was the procedure. He simply did not follow it. Because he did not follow the procedure, the grievor set the stage for considerable embarrassment to the Employer. This~ embarrassment occurred as follows; After the grievor removed the shower head -- unknown to anyone but himself -- one of the deceased's relatives returned to her apartment to remove the shower head'because another relative wished to have it. When he found it gone,~ he called the Employer to ask where it was. Because the grievor did not call.the central office for authorization, the Maintenace Supervisor had no idea where the shower head might be. Mr. _. Grehan was dispatched to 30 Baseline Road in order to attempt to locate‘ it. It was only,at this ,point that the shower head was discovered. Ultimately, it was returned to the relatives of the deceased. Perhaps because this incident caused the above embarrass- . ment to the Employer, it was decided that the grievor ought to be called in to the central office in order to confront him with the complaints that had been made regarding un- authorized entry, re-acquaint him with the requirements of the Rules and Regulations and counsel him that he must comply ' with the requirement to obtain a work order and, if necessary, - 10 - a permission slip before entering an apartment to make a repair or adjustment. This meeting was held on August 29, 1980 in the board room of the head office. It was chaired , by Mr. Walters, the Maintenance Engineer. Also in attendance for management were Mr. ~Grehan and another Maintenance Supervisor, Mr. Cook. The grievor was accompanied by his Union Steward;Mr. Ron Tucker. According to Mr. Grehan's testimony, the grievor was very amiable and co-operative at this meeting. He attempted to exp.lain away the complaints that had been made regarding unauthorized entry. The attention of the meeting then was directed toward reviewing the procedures that should be followed with respect to work orders and permission slips. The grievor indicated that he understood everything and. that he agreed with the procedures. On August 30, which was the next day, there began a sequence of events which indicated that the grievor did not intend to change his casual approach to compliance with the foregoing regulations. On that day, the relatives of deceased tenant, Mrs. O'Dwyer, who had lived in apartment #603, were completing. the removal of her personal effects, etc., from the apartment. That evening, while the grievor was in the lounge of the apartment building, he was approached = A - 11 - by Mrs. O'Dwyer's daughter. The latter handed him the keys to the apartment and advised him that although they had‘ moved out all of what they were going to, there remained in the apartment some junk and garbage which she would have put in the garbage room but could not because the door was locked.~ The grievor replied. to her that he would take the keys .and Shea shouldn't worry about the, garbage. He and his co-worker, Mr. Thorne, would take care of it when they return to work after.~the holiday weekend. On Monday, September 2, Mr. Grehan arrived at the building to inspect the apartments which had been the subject of "moveouts". He was accompanied by the grievor. When he opened the door to 'apartment-&603 and saw that there still were contents remaining in the apartment, including a rolled-up rug and a lamp standard, he immediately closed the door and locked it. He told the grievor that he was not to go into that apartment until further notice. For sohe reason, the grievor did not inform Mr. Grehan that Mrs.. O'Dwyer's daughter had characterized the contents as junk and garbage and had requested that they be disposed of. Mr. Grehan returned to the central'offices and attempted to get into contact with Mrs. O'Dwyer's daughter. She, however, was not available. Apparently she .and her husband had left - 12 - for a v&cation. It was decided, that in accordance with a procedure for such situations, it would be necessary to move out the articles which remained in the apartment, tag them and store them for 30 days. OnSeptember 4, when Mr. Grehan returned to apartment #603 to carry out this, procedure, he found that all of the articles which had been left in the middle of the floor had disappeared. At the hearing, it was shown that on Sept. 3, Mr. Thorne, acting under the direction of the grievor and with the grievor's assistance, had removed all of the article and placed them in the garbage room. The grievor did not possess any work order ~to do this work. He expressly had been instructed by Mr.' Grehan, in accordance with the procedures required by the Rules and Regulations, not to enter the apartment. Yet, despite this, the grievor did so. When management found out that the grievor disposed of the articles in. apartment #603 by virtue of making an \ unauthorized entry which not only was against regulations butt also against express orders from his supervisor, Mr. Grehan, it was decided that discipline was in order. an September 22, 1980, Mr. Walters wrote a letter to the grievor reviewing the final incident and the two incidents - 13 - which preceded the meeting of August 29. The letter concluded, in pertinent part: All. the above entries violate the Landlord and Tenant Act, the Authority 'Rules and Regulations which you signed as a condition of employment. They have caused unreparable [sic] damage to your reputation of honesty and integrity as an on-site building custodian which reflects on the .integrity of the Authority. Therefore, we must advise you that we are taking the following disciplinary action: . . . . 2. You shall be reassigned to an off-site building custodian position at OH 15, 632 Hale Street evective October 15, 1980. The duties and schedule of work shall be given to you October 1, 1980. Yours truly, G.A. Walters, Maintenance Manager. The grievor was required to vacate his apartment in the building by November 30, 1980. He was reassigned to off- site 'duties in another one of the Employer's apartment buildings. Thins arbitration followed in due course. On the above facts, there seems to be little doubt that then Employer had just cause to discipline the griever., Only one day after a meeting at which the Employer stressed the need to follow. the procedures _c . required by-the Rules and Regulations of, the Employer, the grievor embarked upon a course of conduct indicating that he did not have any intention of reforming his ,> -. \ ‘( - 14 - previous casual attitude toward them. Moreover, this course of conduct also reflected a similar casual attitude toward direct orders from his supervisor which seems to us to have bordered upon insubordination. As- to the'level of'discipline which was imposed in this case, there does not appear, to be any compelling reason to dis'turb the assessment of the Employer. In a previous case .before this Board, which involved only one active unauthorized entry, this Board upheld the .discharge of a caretaker who had been subject to previous 'discipline. In that case Re Arsenault and Ontario Housing Corporation (March~22, 19771, GSB #69/76 (Beatty), the Board said, in pertinent part: In the result we must conclude that the grievor did in fact improperly enter the unit and dispose of the property he discovered there. That such behaviour is, in the context of a~ Public Housing Authority, of itself,and standing alone, to be considered as most serious and reprehensible conduct and accordingly deservins of severe discioline sanctions. is bevond question1 1 (i964) 14 L.A.C. 254 (Cross). Indeed, in makinc that determination we recognize that such behaviour could, in.the proper circumstances give rise to criminal charges. . . . We agree with Professor Beatty that. unauthorized entry in the context of a Public Housing Authority'must be deemed reprehensible and deserving of se.vere disciplinary sanctions. - 15 - In this case, the consequences of the discipline imposed upon the grievor were, we agree, severe. Re suffered -- and continues to suffer -- a considerable financial loss. It seams to us, however, that this discipline was warranted and that, in effect, the grievor broughtit upon himself. By his own actions, he indicated to the Employer that the less severe approach it initially took toward,attempting to induce the grievor to reform his behaviour was a total failure. This seemed to leave the Employer with no other alternative but to remove the griever from his on-site position at 30 Baseline Road. The grievor, by his own actions, demonstrated that if he wereleft in - his on-site position he would make further unauthorized entries. This would, apparently, only fuel further alarm and uneasiness among the tenants. The grievance is dismissed.. .,. DATED at London, Ontario this 21st day o R.J. Roberts Vice Chairman E. McIntyre ,' !&amber tic F---- W. Evans Uember